Citation Nr: 0820154
Decision Date: 06/19/08 Archive Date: 06/25/08
DOCKET NO. 03-20 121 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to service connection for left ear hearing
loss.
2. Entitlement to an initial increased rating for
postoperative residuals of a cyst of the upper back with
residual painful scar, currently evaluated as 10 percent
disabling.
3. Entitlement to an initial compensable rating for ganglion
cyst of the right wrist.
4. Entitlement to an initial compensable rating for
residuals of postoperative otitis of the left ear.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
F. Fuller, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1994 to
November 2001. This case comes before the Board of Veterans'
Appeals (Board) on appeal of a July 2002 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Los Angeles, California.
The veteran's appeal was previously before the Board in June
2007, at which time the Board remanded the case for further
development by the originating agency. The case has been
returned to the Board for further appellate action.
FINDINGS OF FACT
1. The veteran does not have current hearing loss
disability.
2. The veteran's ganglion cyst of the right wrist is
manifested by complaints of pain, but not by any substantial
limitation of motion or clinically significant functional
impairment due to pain.
3. The veteran's cyst of the upper back with residual
painful scar, is recurrent and productive of pain, but does
not cover an area exceeding 12 square inches or 77 square
centimeters or limit the motion of any joint.
4. The veteran's chronic otitis media of the left ear is not
manifested by suppuration or aural polyps.
CONCLUSIONS OF LAW
1. Left ear hearing loss was not was not incurred in or
aggravated by active military service. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. § 3.385 (2007).
2. The criteria for an evaluation in excess of 10 percent
for a ganglion cyst of the right wrist are not met. 38
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7,
4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5015,
5024 (2007).
3. The criteria for a rating in excess of 10 percent for a
cyst of the upper back with residual painful scar have not
been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7,
4.118, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, 7805,
7819 (2007).
4. The criteria for an initial compensable rating for
chronic suppurative otitis media of the left ear have not
been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87,
Diagnostic Code 6200 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection for Left Ear Hearing Loss
Legal Criteria
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002).
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as opposed to merely
isolated findings or a diagnosis including the word
"chronic." When the fact of chronicity in service (or
during any applicable presumptive period) is not adequately
supported, then a showing of continuity after discharge is
required to support the claim. 38 C.F.R. § 3.303(b).
Service connection may be granted for any disease initially
diagnosed after service, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2007).
Direct service connection may not be granted without medical
evidence of a current disability, medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury. See Caluza v. Brown, 7 Vet.
App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996)
(table).
For the purpose of applying the laws administered by VA,
impaired hearing will be considered a disability when the
auditory threshold for any of the frequencies of 500, 1000,
2000, 3000 and 4000 Hertz is 40 decibels or greater; the
auditory thresholds for at least three of these frequencies
are 26 decibels or greater; or speech recognition scores
using the Maryland CNC Test are less than 94 percent.
38 C.F.R. § 3.385 (2007).
Analysis
The veteran contends that he operated heavy equipment such as
bulldozers in service with no ear protection and that he was
exposed to weapons fire during training exercises and that
due to these circumstances, he developed hearing loss in his
left ear. Service medical records also show that the veteran
developed an ear infection in service and underwent a
mastoidectomy in his left ear in 1999.
However, the veteran's service medical records do not contain
evidence of hearing loss disability for VA compensation
purposes. Although there was evidence of mild high frequency
hearing loss in the left ear in service, the level of hearing
loss found was not considered disabling for VA purposes.
Furthermore, there is no post-service medical evidence of
hearing loss disability for VA compensation purposes.
On VA examination in May 2002, the veteran's puretone
thresholds were all 10 decibels or less in the right ear and
35 decibels or less in the left ear, and speech recognition
scores were 100 percent for the right ear and 96 percent for
the left ear. During his most recent VA examination in
September 2007, the veteran's puretone thresholds were all 10
decibels or less in the right ear and 25 decibels or less in
the left ear. Speech recognition scores were 90 percent for
the right ear and 70 percent for the left ear. However, the
examiner indicated that a rating on the basis of puretone
thresholds only was recommended because of unrealistic number
and errors during word recognition testing in both ears.
In light of the absence of any competent evidence of hearing
loss disability in service or thereafter, this claim must be
denied.
Increased Rating Claims
General Legal Criteria
Disability ratings are determined by applying the criteria
set forth in the VA Rating Schedule. Assigned ratings are
based, as far as practicable, upon the average impairment of
earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38
C.F.R. §§ 4.1, 4.10 (2007).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise the lower rating will be
assigned. 38 C.F.R. § 4.7 (2007).
The basis of disability evaluation is the ability of the body
as a whole, or of the psyche, or of a system or organ of the
body to function under the ordinary conditions of daily life
including employment. 38 C.F.R. § 4.10.
The veteran's entire history is to be considered when making
a disability determination. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where
entitlement to compensation already has been established and
an increase in the disability rating is at issue, it is the
present level of disability that is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When a
veteran takes issue with the initial rating assigned when
service connection is granted for a particular disability,
the Board must evaluate the relevant evidence since the
effective date of the award and may assign separate ratings
for separate periods of time based on facts found - a
practice known as "staged" ratings. Fenderson v. West, 12
Vet. App. 119 (1999). See also Hart v. Mansfield, 21 Vet.
App. 505 (2007).
Analysis
In a July 2002 rating decision, the RO granted the veteran
service connection for status post cyst removal of the upper
back with residual painful scar. An evaluation of 10 percent
was assigned under Diagnostic Code 7804, effective November
6, 2001. In the same July 2002 rating decision, the RO also
granted service connection for a ganglion cyst, right wrist.
A noncompensable evaluation was assigned under Diagnostic
Code 5015, effective November 6, 2001. In the same July 2002
rating decision, the RO granted service connection for otitis
media, status post tympanomastoidectomy, left ear. A
noncompensable evaluation was assigned under Diagnostic Code
6200, effective November 6, 2001.
The veteran filed a notice of disagreement in December 2002,
contending that the ratings assigned for his service-
connected disabilities were too low.
Postoperative Residuals of Cyst of the Upper Back with
Residual Painful Scar
The veteran was afforded a VA QTC examination in May 2002,
prior to the July 2002 rating decision on appeal. At that
time, the veteran reported having a cyst removed from his
back in February 2001. He complained of discomfort while
lying on the back, lumpiness, swelling and redness in the
affected area and pain. On physical examination, there was a
2 cm. scar, purple in coloration with a small keloid
formation and mild tenderness. The examiner's diagnosis was
status post cyst removal of the upper back with residual
painful scar.
During his most recent VA examination in November 2007, the
veteran reported that the cyst which was removed in 2001 had
grown back 6-7 months prior and believed it was increasing in
size. He had not had any medical care for the condition
since his 2001 surgery. On physical examination, there was a
2.5 cm. x 2mm. scar located on the right upper back
approximately 10 cm. from the spine in the mid to lower
thoracic region. The scar was without erythema, tenderness
or attachment to underlying structures. There were 4 very
faint markings running along the scar consistent with suture
points, and an 8 mm. x 7 mm. soft nodule of "doughy"
consistency that partially overlapped the scar. The examiner
noted that there was no diagnosis established because it
would require unnecessary surgery for an asymptomatic lesion.
The Board notes that the rating criteria for evaluating
disabilities of the skin were revised, effective August 30,
2002.
The criteria in effect prior to August 30, 2002, provided
that a 10 percent rating is assigned for superficial scars
that are poorly nourished, with repeated ulceration, or that
are tender and painful on objective demonstration. 38 C.F.R.
§ 4.118, Diagnostic Codes 7803, 7804 (2002). Scars may also
be rated based on the limitation of function of the part
affected. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2002).
Under the criteria which became effective August 30, 2002, a
10 percent evaluation is authorized for superficial, unstable
scars. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2007). A
note following this diagnostic code provides that an unstable
scar is one where, for any reason, there is frequent loss of
covering of the skin over the scar.
Under the criteria which became effective August 30, 2002, a
10 percent evaluation is authorized for superficial scars
that are painful on examination. 38 C.F.R. § 4.118,
Diagnostic Code 7804 (2007).
Notes following Diagnostic Codes 7803 and 7804 provide that a
superficial scar is one not associated with underlying soft
tissue damage.
As a preliminary matter, the Board notes that in Kuzma v.
Principi, 341 F.3d 1327 (Fed. Cir. 2003), the United States
Court of Appeals for the Federal Circuit (Federal Circuit)
overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the
extent that it conflicts with the precedents of the United
States Supreme Court (Supreme Court) and the Federal Circuit.
See Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991).
In VAOPGCPREC 7- 2003, the General Counsel held that Karnas
is inconsistent with Supreme Court and Federal Circuit
precedent insofar as Karnas provides that when a statute or
regulation changes while a claim is pending before VA or a
court, whichever version of the statute or regulation is most
favorable to the claimant will govern unless the statute or
regulation clearly specifies otherwise. The General Counsel
held that the rule adopted in Karnas no longer applies in
determining whether a new statute or regulation applies to a
pending claim. The General Counsel indicated that pursuant
to Supreme Court and Federal Circuit precedent, when a new
statute is enacted or a new regulation is issued while a
claim is pending before VA, VA must first determine whether
the statute or regulation identifies the types of claims to
which it applies. If the statute or regulation is silent, VA
must determine whether applying the new provision to claims
that were pending when it took effect would produce genuinely
retroactive effects. If applying the new provision would
produce such retroactive effects, VA ordinarily should not
apply the new provision to the claim. If applying the new
provision would not produce retroactive effects, VA
ordinarily must apply the new provision. VAOPGCPREC 7-2003.
In accordance with VAOPGCPREC 7-2003, the Board has reviewed
the revised criteria for evaluating skin disabilities. The
revised rating criteria would not produce retroactive effects
since the revised provisions affect only entitlement to
prospective benefits. Therefore, VA must apply the new
provisions from their effective date.
The only compensable evaluation warranted under the former or
current Diagnostic Code 7804 is 10 percent, which the veteran
has already been assigned. However, as there is no evidence
of limitation of function of the back and the evidence shows
that the veteran's head, face or neck are not affected by the
scar, a separate rating under Diagnostic Codes 7800 or 7805
is also not warranted.
The Board has also considered whether there is any other
schedular basis for allowing this appeal but has found none.
Extra-schedular Consideration
The Board has also considered whether this case should be
forwarded to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R. §
3.321(b)(1). The record reflects that the veteran has not
required frequent hospitalization for his disability and that
the manifestations of the disability are those contemplated
by the schedular criteria. In sum, there is no indication
that the average industrial impairment from the disability
would be in excess of that contemplated by the assigned
evaluation. Therefore, the Board has determined that
referral of this case for extra-schedular consideration is
not in order.
Ganglion Cyst of the Right Wrist
As noted above, the veteran was afforded a VA QTC examination
in May 2002. At that time, the veteran complained of
intermittent flare-ups of pain approximately once per week
lasting for 2 days at a time. He also reported that
repetitive movements such as using hand controls with his
right hand caused him pain, and that he felt that his right
wrist was weak, stiff, inflamed and swelled on occasion. On
physical examination, there was swelling confined to the
radial palmar aspect of the right wrist that was mildly
tender. Range of motion was within normal limits, with
dorsiflexion of 70 degrees, palmar flexion of 80 degrees,
radial deviation of 20 degrees and ulna deviation of 45
degrees. The examiner also noted that range of motion was
limited by pain, especially with dorsiflexion and plantar
flexion. The examiner's diagnosis was status post right
wrist injury with residual pain and cyst.
During his most recent VA examination in November 2007, the
veteran complained of pain in the wrist at the site of the
ganglion cyst when pushing the right hand firmly against
something or lifting something heavy, especially when done in
a repetitive fashion. He also reported a tingling sensation
at the base of the thumb in the area of the thenar eminence.
He also reported no treatment for the condition and that he
was not taking medication. His activities of daily living
were not limited and the condition was not impacting his life
significantly.
On physical examination, there was a 1.5 cm. area of
localized swelling/nodule on the volar aspect of the wrist on
the radial side, and the nodule was tender. There was no
erythema or tenderness elsewhere except slightly in the area
in the immediate vicinity of the nodule. Sensation to
pinprick and light touch were normal and symmetrical in both
hands. Range of motion was extension of 50 degrees
bilaterally, flexion of 80 degrees bilaterally, radial
deviation of 18 degrees on the right and 25 degrees on the
left and ulnar deviation of 45 degrees on the right and 50
degrees on the left. There was no stress pain with
repetitive flexion and extension, but the veteran was able to
reproduce pain by pushing his right hand with the wrist in
extension against the office desk. The examiner's diagnosis
was ganglion cyst of the right wrist, chronic with
predictable, reproducible pain, but with little impact on
function.
Outpatient treatment records from the VA Medical Center in
Los Angeles show that the veteran complained of right wrist
pain for 10 years. He is right-handed and complained of
intermittent pain and swelling on volar, radial aspect of the
wrist. He reported that the pain was exacerbated with push-
ups and flexion of the wrist. He also reported experiencing
intermittent pain shooting down his hand into his fingers and
thumb, pain mostly in the thumb area. There were no color
changes of the fingers, but noted swelling over the volar
radial aspect of the wrist, and tenderness to palpation over
the area. Pulse was easily palpable under the mass, and
there was no movement of the mass with wrist range of motion.
Testing was negative for any signs of nerve decomposition and
there was full sensation in the fingers. MRI showed no
fracture or deformity of the wrist and soft tissue swelling
of the thenar eminence.
Disabilities may be rated by analogy to a closely related
disease where the functions affected and the anatomical
location and symptomatology are closely analogous. 38 C.F.R.
§§ 4.20, 4.27 (2007).
The veteran's right wrist disability is currently rated under
38 C.F.R. § 4.71a, Diagnostic Code 5015 for new growths of
bones which are benign, based on a right wrist injury
incurred in service which was diagnosed as a ganglion cyst.
Benign bone growths are to be rated based on limitation of
motion as degenerative arthritis. See 38 C.F.R. § 4.71a,
Diagnostic Code 5015 and Note following Diagnostic Code 5013
through 5024.
Diagnostic code 5003, degenerative arthritis, requires rating
under limitation of motion of the affected joints, if such
would result in a compensable disability rating. 38 C.F.R. §
4.71a, Diagnostic Code 5003 (2007). When the limitation of
motion of the specific joint or joints involved is
noncompensable under the appropriate diagnostic codes, a
rating of 10 percent is assigned for each such major joint or
group of minor joints affected by limitation of motion, to be
combined, not added under diagnostic code 5003. Limitation
of motion must be objectively confirmed by findings such as
swelling, muscle spasm, or satisfactory evidence of painful
motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007).
The medical evidence of record shows that there is little
functional impairment of the veteran's wrist, hand or arm due
to the benign growth on his right wrist. Although limited by
pain, range of motion was within normal limits on examination
in May 2002 and November 2007. Accordingly, the Board finds
that a compensable evaluation for the veteran's right wrist
disability is not warranted under Diagnostic Code 5015.
The Board has also considered whether there is any other
schedular basis for allowing this appeal but has found none.
Extra-schedular Consideration
The Board has also considered whether this case should be
forwarded to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R. §
3.321(b)(1). The record reflects that the veteran has not
required frequent hospitalization for his disability and that
the manifestations of the disability are those contemplated
by the schedular criteria. In sum, there is no indication
that the average industrial impairment from the disability
would be in excess of that contemplated by the assigned
evaluation. Therefore, the Board has determined that
referral of this case for extra-schedular consideration is
not in order.
Residuals of Postoperative Otitis of the Left Ear
The veteran was also afforded a May 2002 VA QTC audiological
examination. At that time, it was noted that the veteran had
developed an ear infection in service and consequently,
underwent a mastoidectomy in his left ear. He complained of
mild numbness of the left ear and an inability to hear at
normal conversation level. Physical examination revealed the
left tympanic membrane to be scarred with a healed
perforation due to previous mastoid surgery. The mastoid was
within normal limits and there was no evidence of active ear
disease. There was also no evidence of any disfigurement,
keloid formation or limitation of function.
Outpatient treatment records from the VA LA Outpatient Clinic
show that the veteran was seen in January 2003 for complaints
of some ear pain, but there was no drainage or fever. On
examination, the tympanic membranes were hypermobile, and
there were no aural polyps.
During his most recent VA examination in November 2007, the
veteran reported that in August 2007, he developed pain,
drainage and an occasional sensation of dizziness. He was
treated with a combination of oral antibiotics and antibiotic
ear drops for presumed otitis external and otitis media. He
also reported a subsequent infection in October 2007 with no
evidence of ear infection. On examination in November 2007,
the left canal and tympanic membrane were normal except for a
circular area at the posterior inferior portion of the
tympanic membrane that appeared to be somewhat less
translucent and more erythematous than other parts. There
was scant wax in the canal that did not significantly affect
visualization of the ear. The examiner's diagnosis was
chronic otitis media status post tympanomastoidectomy without
significant subsequent problems except for chronic decreased
hearing left ear and scar that caused a slight, but
noticeable deformity.
38 C.F.R. § 4.87, Diagnostic Code 6200 (2007) provides the
rating criteria for chronic suppurative otitis media. A 10
percent evaluation is assigned for this condition during
suppuration or with aural polyps. In addition, separate
ratings are to be assigned for hearing impairment and/or
complications such as labyrinthitis, tinnitus, facial nerve
paralysis, or bone loss of skull, if present. See 38 C.F.R.
§ 4.87, DC 6200, Note (2007).
The evidence of record does not support the assignment of a
10 percent rating under Diagnostic Code 6200 for the
veteran's service-connected chronic otitis media of the left
ear. Though the veteran has reported occasional otorrhea
(drainage) from his left ear, there is no evidence that he
has had any suppuration or aural polyps. Nor does the
evidence of record support the assignment of separate ratings
for any additional impairment, as there is no evidence the
veteran has labyrinthitis, facial nerve paralysis, or bone
loss of skull, and as discussed above, the medical evidence
of record does not show that he has hearing loss for VA
compensation purposes. See VA records; VA C&P audio
examination reports; July 2007 rating decision.
The Board has also considered whether there is any other
schedular basis for allowing this appeal but has found none.
Extra-schedular Consideration
The Board has also considered whether this case should be
forwarded to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R. §
3.321(b)(1). The record reflects that the veteran has not
required frequent hospitalization for his disability and that
the manifestations of the disability are those contemplated
by the schedular criteria. In sum, there is no indication
that the average industrial impairment from the disability
would be in excess of that contemplated by the assigned
evaluation. Therefore, the Board has determined that
referral of this case for extra-schedular consideration is
not in order.
Duties to Notify and to Assist Claimants
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). Notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005). The notice requirements
of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a "service connection" claim, defined to
include: (1) veteran status; (2) existence of a disability;
(3) a connection between the veteran's service and the
disability; (4) degree of disability; and (5) effective date
of the disability. See Dingess v. Nicholson, 19 Vet. App.
473 (2006).
The record reflects that in December 2001, prior to the
initial adjudication of the veteran's initial claims, and in
February 2005, the veteran was provided with the notice
required by section 5103(a), to include notice that he submit
any pertinent evidence in his possession. The Board notes
that, even though the letters requested a response within 60
days, they also expressly notified the veteran that he had
one year to submit the requested information and/or evidence,
in compliance with 38 U.S.C.A. § 5103(b) (evidence must be
received by the Secretary within one year from the date
notice is sent).
The veteran was provided the specific notice required by
Dingess v. Nicholson, 19 Vet. App. 473 (2006) (as the degree
of disability and effective date of the disability are part
of a claim for service connection, VA has a duty to notify
claimants of the evidence needed to prove those parts of the
claim) in June 2006.
For an increased-compensation claim, section § 5103(a)
requires, at a minimum, that the Secretary notify the
claimant that, to substantiate a claim, the claimant must
provide, or ask the Secretary to obtain, medical or lay
evidence demonstrating a worsening or increase in severity of
the disability and the effect that worsening has on the
claimant's employment and daily life. Vazquez-Flores v.
Peake, 22 Vet.App. 37 (2008). Further, if the Diagnostic
Code under which the claimant is rated contains criteria
necessary for entitlement to a higher disability rating that
would not be satisfied by the claimant demonstrating a
noticeable worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life. As with
proper notice for an initial disability rating and consistent
with the statutory and regulatory history, the notice must
also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask the Secretary
to obtain) that are relevant to establishing entitlement to
increased compensation - e.g., competent lay statements
describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application
rejections, and any other evidence showing an increase in the
disability or exceptional circumstances relating to the
disability. Vazquez-Flores at 43-44.
The Board acknowledges that the notice provided in December
2001 and February 2005 did not cover all of the elements of
the notice required by the recent Vazquez-Flores decision.
Nonetheless, the Board concludes that the veteran was not
prejudiced in this instance, as the 2001 and 2005 notice
suggested types of evidence, including both medical and lay
evidence, that could support the veteran's claims for
increase, and the veteran was given the specific rating
criteria in the statement of the case and supplemental
statements of the case. Therefore, he had actual notice of
the rating criteria to be applied to the disabilities at
issue. The veteran also provided specific information
concerning his disabling manifestations during the course of
his claims and appeal.
Finally, the Board notes that veteran's service medical
records and all other pertinent available records have been
obtained in this case. In addition, the veteran has been
afforded appropriate VA examinations. Neither the veteran
nor his representative has identified any outstanding
evidence, to include medical records, which could be obtained
to substantiate the denied claims. The Board is also unaware
of any such outstanding evidence.
Following the provision of the required notice and the
completion of all indicated development of the record, the
originating agency readjudicated the veteran's claims. In
sum, the Board is satisfied that any procedural errors in the
development and consideration of the claims by the
originating agency were not prejudicial to the veteran.
ORDER
Service connection for left ear hearing loss disability is
denied.
An initial rating in excess of 10 percent for the
postoperative residuals of a cyst of the upper back with
residual painful scar, is denied.
An initial compensable rating for a ganglion cyst of the
right wrist is denied.
An initial compensable rating for residuals of postoperative
otitis media of the left ear is denied.
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs